Obtaining Property by Deception

Obtaining Property by Deception

Obtaining Property by Deception is an offence contrary to section 17 of the Theft Ordinance (Cap. 210). The maximum punishment is 10 years’ imprisonment. 

In simple terms, the offence is committed when a person dishonestly uses deception to obtain property that he is not lawfully entitled to and intending to keep it permanently.

A person is considered to have “obtained” property if they acquire ownership, possession, or control of it. This can also include situations where the person acquires the property on behalf of another individual, or facilitates another individual’s acquisition or retention of the property.

The deception has to be one of the real reasons why the property was obtained. There must be a clear link between the deception and obtaining the property, shown by a witness saying that the deception influenced him, or that he relied on it, when he agreed to give the property. However, the prosecution does not have to show that the deception was the only reason for the victim’s decision. It is only necessary to prove that the deception was a significant factor in the victim’s choice to hand over the property.

As an example, if a person sold counterfeits to a customer and claimed those to be luxury brands, he would be guilty of the offence because he received more money than he was entitled to by deceiving the customers. 

A person does not always have to say something false in words to commit the offence. Sometimes, the law treats a person’s conduct itself as making a certain representation, and if that implied representation is false, the offence may still be committed.

In this context, “property” doesn’t only mean physical items like cash or goods. It also covers legal rights that can be enforced in court, known as “things in action”. For example, the balance in a bank account, a cheque, or the right to receive money under a loan or insurance claim are all treated as property. If someone uses deception to get hold of such rights, that too can amount to obtaining property by deception.

Examples: post-dated cheque

For instance, the law recognises that when a person gives a post-dated cheque (meaning that the cheque could be cashed out in a future date), he is generally representing that the cheque will be honoured when it is presented on or after the date written on it. 

Therefore, if a person purchases goods or property and pays by post-dated cheques, knowing that there will be insufficient funds to honour the cheque and the person was never intended to honour the cheque, this would be treated as a deception. This is because the cheque is actually worthless, and the person obtained the goods or property without actually paying for it in reality. If he does so dishonestly in order to obtain goods or property, he may be guilty of the offence.

Examples: In relation to credit card 

Similarly, the law recognises that when a person presents a credit card, he is implicitly implying that he is authorised to use the card and the issuing bank will honour the transaction. 

Therefore, if a person uses a stolen credit card to obtain goods, he would be making a deception that he was authorised and entitled to use the credit cards and hence guilty of obtaining property by deception.